Holder’s Rationale for Killing Americans is Full of Holes

In a speech before a university audience, Attorney General Eric Holder this week provided the legal justifications for assassinating American citizens involved in terrorism.

Holder told students at Northwestern University that the government can legally kill U.S. citizens overseas, as it did with Anwar al-Awlaki in Yemen last September, if they are “a senior operational leader” of al-Qaeda or its “associated forces” provided the following is true:

· They pose “an imminent threat of violent attack”

· They can’t be captured

· The “law of war principles” applies

· Collateral damage is minimized.

The attorney general added that, in his opinion, the killings do not represent a violation of the Fifth Amendment because the president has the wartime authority to serve as judge in such cases. Holder even refused to characterize the killing of Awlaki as an “assassination.”

Spencer Ackerman at Wired’s Danger Room wrote: “Holder left several aspects of his argument unexplained.”

First of all, what is the definition of a “senior operational leader?” Also, what does it mean to be an “affiliate” of al-Qaeda?

Furthermore, Holder did not explain why the U.S. could not have captured al-Awlaki instead of killing him, which leaves open this question for targets of future assassinations of U.S. citizens, such as Adam Gadahn and Omar Hammami.

Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, issued a statement that said, “Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

The ACLU has been trying to get the Obama administration to release documents related to its program of drone attacks and “targeted killings,” in particular the legal rationale for killing Awlaki, his 16-year-old son, Abdulrahman al-Awlaki, and a third American, Samir Khan. The Justice Department has taken the position that this information should remain secret.

Consequently, the ACLU found Holder’s speech hypocritical. As Shamsi put it, “If the attorney general can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also defend its legal justifications in court.”